Her Majesty the Queen v. Owen [Indexed as: R. v. Owen]
54 O.R. (3d) 257
[2001] O.J. No. 1710
Docket No. C34362
Court of Appeal for Ontario
Catzman, Weiler and Rosenberg JJ.A.
May 8, 2001
- Application for leave to appeal to the Supreme Court of Canada granted February 21, 2002 (Gonthier, Major and Binnie JJ.).
Criminal law--Mental disorder--Dispositions--Appellant found not guilty of second-degree murder by reason of insanity in 1978--Appellant living in community under hospital supervision when he tested positive for cannabis and cocaine in 2000 --Ontario Review Board erred in ordering that appellant be detained in hospital with only staff-accompanied access to community--Evidence before Board did not establish that appellant was significant threat to community--Board erred in shifting focus from protection of public to prevention of appellant's use of illegal drugs and in making disposition for punitive purpose--Board could not reasonably conclude that appellant posed significant threat to public safety--Board obliged to order appellant's absolute discharge.
In 1978, the appellant was found not guilty of second-degree murder by reason of insanity and was ordered detained in the Penetanguishene Mental Health Centre. As the years passed, his dispositions provided for progressively increased access to the community, latterly residence in the community under hospital supervision. In 2000, after a urine sample tested positive for cannabis and cocaine, he was returned to in-patient status in the custody of the Kingston Psychiatric Hospital ("KPH"). The Ontario Review Board ordered that he be detained at KPH with only staff-accompanied access to the hospital grounds or the community. The appellant appealed.
Held, the appeal should be allowed.
Section 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 requires the Review Board to discharge an accused absolutely where the accused is not a significant threat to the safety of the public. To engage s. 672.54, the threat must be "significant" both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A miniscule risk of grave harm will not suffice, nor will a high risk of trivial harm; and the conduct or activity creating the harm must be criminal in nature. On the evidence before the Board in this case, KPH had not considered the appellant to be a significant risk to public safety since 1994. The evidence before the Board fell short of establishing that the appellant was a significant threat to the safety of the public, even when using drugs. The Board shifted the focus from the protection of the public to the prevention of the appellant's use of illegal drugs. An accu sed who has been found not criminally responsible is not to be punished. The Board erred in exercising its power to make a disposition for a punitive purpose. As the Board could not properly conclude on the evidence before it that the appellant posed a significant threat to public safety, it was obliged to order his absolute discharge.
APPEAL from a disposition of the Ontario Review Board.
Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193, 241 N.R. 1, 63 C.R.R. (2d) 189, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, apld Other cases referred to Beauchamp v. Penetanguishene Mental Health Centre (Administrator) (1999), 1999 CanLII 3764 (ON CA), 138 C.C.C. (3d) 172 (Ont. C.A.); Penetanguishene Mental Health Centre v. Ontario (Attorney General) (1999), 1999 CanLII 1795 (ON CA), 131 C.C.C. (3d) 473 (Ont. C.A.) [Application for leave to appeal to S.C.C. filed (1999), 243 N.R. 196n]; R. v. Peckham (1994), 1994 CanLII 3445 (ON CA), 19 O.R. (3d) 766, 93 C.C.C. (3d) 443, 34 C.R. (4th) 227 (C.A.) [Leave to appeal to S.C.C. refused (1995), 1995 CanLII 18839 (SCC), 37 C.R. (4th) 399n, 188 N.R. 237n] (sub nom. Peckham v. Ontario (Attorney General)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54 [as am. S.O. 1991, c. 43, s. 4], 672.78 [as am. S.O. 1991, c. 43, s. 4; S.O. 1997, c. 18, s. 89]
Brian Snell, for appellant. Simon Young, for respondent.
The judgment of the court was delivered by
CATZMAN J.A.:--
The Appeal
[1] In 1978, the appellant, Terry Owen, was tried on a charge of second-degree murder. Found not guilty by reason of insanity, he was ordered to be detained in the Penetanguishene Mental Health Centre. In the 22 years following his original detention, he has been subject to 24 separate warrants or disposition orders.
[2] As the years passed, the appellant's dispositions provided for progressively increased access to the community, latterly residence in the community under hospital supervision. In January 2000, however, after a urine sample tested positive for cannabis and cocaine, he was returned to in-patient status in the custody of the Kingston Psychiatric Hospital ("KPH"). In May 2000, the Ontario Review Board ("the Board") ordered that he be detained at KPH with only staff-accompanied access to the hospital grounds or the community. This is an appeal from that order.
[3] For the reasons that follow, I would allow the appeal, set aside the order of the Board and direct that the appellant be discharged absolutely.
Facts
The 1978 offence
[4] At the time of the 1978 offence, the appellant and his male victim had been living together for about three months. The appellant remembered feeling paranoid for some weeks before the incident. That morning, he and his roommate shared an apple spiked with methamphetamine, an amphetamine derivative. After consuming the apple, the appellant became fearful of his friend who, he came to believe, had been involved in the death of the appellant's grandfather. The appellant had a gun and remembered hitting the victim with a stick or other object. He then remained at the scene until the police arrived and arrested him.
[5] Originally charged with attempted murder and remanded to the Penetanguishene Mental Health Centre, the appellant was charged with second-degree murder when his friend died of his wounds. As noted, the appellant was tried and found not guilty by reason of insanity.
Subsequent dispositions
[6] After the trial, the appellant was returned to Penetanguishene and detained under a Lieutenant-Governor's warrant. Except for a brief interim transfer to St. Thomas Psychiatric Hospital, he remained in Penetanguishene until 1986, when he was transferred to the North Bay Psychiatric Hospital. Annual Board hearings from 1986 to 1989 resulted in increased community access, progressing from day passes to permission to live in the community on stated conditions.
[7] Then, in 1990, the appellant was convicted of assault causing bodily harm after striking a man in the face with a pool cue, fracturing the victim's jaw. The appellant had been drinking heavily at the time. He was sentenced to 14 months' imprisonment and two years' probation.
[8] Prior to his release from jail, the appellant was examined and assessed by a psychiatrist. The mental status examination indicated that he was not depressed and showed no evidence of anxiety; that there was no disorder of thought and speech; and that there was no evidence of hallucinations or delusional thinking. After completing his sentence, he was transferred to the secure unit at KPH. The hospital reports upon transfer noted that he had an extensive history of substance abuse, and one of the primary objects of his transfer to KPH was to address his problem of drug and alcohol abuse.
[9] From 1991 to 1994, in the absence of any indication of major depression or psychotic symptoms, the appellant was again allowed gradually increased access to the community, first by way of staff-escorted community access and later by way of permission to live in the community under prescribed conditions, including abstinence from non-medical use of alcohol and drugs. Dispositions in 1994, 1995 and 1996 provided for conditional discharges. In 1997, the appellant's urine tested positive for cannabis, and dispositions in that year and in 1998 and 1999 provided that he be detained at KPH but live in Kingston, again on the condition that he abstain from non- medical use of alcohol and drugs.
[10] While living in the community from 1994 to 1999, the appellant lived with his common-law wife and their son. His common-law wife appeared to suffer from a mental disorder and they separated intermittently. During these separations, the appellant was the sole caregiver to their young son.
[11] In 1999, the appellant requested and was granted permission to relocate to the Chatham area in order to be closer to friends and family. Before his relocation could be implemented, the appellant was charged with impaired driving. He had been drinking with friends and went for a drive with them. After an altercation, the designated driver left and the appellant drove the car a short distance before being stopped by police. He was returned to KPH on hospital in-patient status three days later.
[12] As a result of the appellant's re-admission to the hospital, his common-law wife was left with their son. Concerned about her ability to care for the child on her own, the Children's Aid Society took him into its custody. The appellant returned to community living two months later, determined to have his son returned to him, but KPH no longer supported his relocation to the Chatham area.
[13] In January 2000, a closely monitored urine sample provided by the appellant tested positive for cannabis and cocaine, and he was readmitted to hospital. He admitted that he had continued to use cannabis for many years and had avoided detection by submitting false urine samples. He denied having used cocaine.
The disposition under appeal
[14] Following a hearing in March 2000, the Board concluded that the appellant's drug-induced psychosis was in remission, but that he continued to suffer from a very serious antisocial personality disorder, complicated by alcoholism and substance abuse. The Board said in their reasons:
It is unfortunate that Mr. Owen has chosen to retard his progress toward rehabilitation and thwart the efforts of his caregivers to return him to society. We note that as recent as August of 1999 the treatment team were prepared to support his transfer to the Chatham area, which remains Mr. Owen's desired relocation. Mr. Owen by his conduct is the agent of his own misfortune, albeit he is unlikely to recognize or appreciate his role in what he will undoubtedly determine to be punishment by the Review Board and the hospital.
Accordingly, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, the Board is of the unanimous view that the least onerous and least restrictive disposition is as follows:
That Mr. Owen be detained at the Kingston Psychiatric Hospital.
That the administrator have the discretion to permit Mr. Owen compassionate leave, staff-accompanied hospital and grounds privileges, and staff- accompanied entry into the community.
That Mr. Owen be required to abstain absolutely from alcohol and non-prescription drugs and submit a sample of his breath and/or urine for testing purposes.
Relevant Provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[15] The Board's authority is set out in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, which provides:
672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
[16] This court's powers on a review of a Board's disposition are set out in s. 672.78 of the Code, which provides:
672.78(1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that
(a) it is unreasonable or cannot be supported by the evidence;
(b) it is based on a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
(2) The court of appeal may dismiss an appeal against a disposition or placement decision where the court is of the opinion
(a) that paragraphs (1)(a), (b) and (c) do not apply; or
(b) that paragraph (1)(b) may apply, but the court finds that no substantial wrong or miscarriage of justice has occurred.
(3) Where the court of appeal allows an appeal against a disposition or placement decision, it may
(a) make any disposition under section 672.54 or any placement decision that the Review Board could have made;
(b) refer the matter back to the court or Review Board for rehearing, in whole or in part, in accordance with any directions that the court of appeal considers appropriate; or
(c) make any other order that justice requires.
Standard of Review
[17] As Osborne A.C.J.O. stated in Beauchamp v. Penetanguishene Mental Health Centre (Administrator) (1999), 1999 CanLII 3764 (ON CA), 138 C.C.C. (3d) 172 at pp. 180-81 (C.A.), the court's review of a disposition
is not a review of the correctness of findings made in the disposition. The review is limited to a review of the evidence to determine whether the Board, properly instructed and acting reasonably, could have reached the conclusion it did . . . .
[18] Given its medical expertise, its specialized knowledge and its advantage in observing witnesses, the Board must be accorded curial deference on appeal. However, if this court concludes that the decision appealed from is unreasonable and cannot be supported by the evidence, the Criminal Code requires that this court intervene [^1]: Penetanguishene Mental Health Centre v. Ontario (Attorney-General) (1999), 1999 CanLII 1795 (ON CA), 131 C.C.C. (3d) 473 at pp. 477-78 (Ont. C.A.).
The Appellant's Mental Condition
[19] In considering the mental condition of the accused, the Board is not limited to assessing whether he or she is certifiable or suffers from the same mental disorder as that from which he or she suffered at the time of commission of the index offence. As this court has noted, the section "speaks to the accused's mental condition and not the existence of a mental disorder": R. v. Peckham (1994), 1994 CanLII 3445 (ON CA), 19 O.R. (3d) 766, 93 C.C.C. (3d) 443 (C.A.) at p. 776 O.R., p. 454 C.C.C. By using this broader expression, Parliament intended the Board to address the overall mental state of the accused without limiting itself to whether that condition, or at least some aspect of it, continues to fit within the confines of the legal concept of a mental disorder: Peckham, at p. 775 O.R., p. 453 C.C.C.
[20] The appellant's drug-induced psychosis, from which he suffered when he committed the index offence, is now in remission. The Board determined, however, that he continues to suffer from an anti-social personality disorder exacerbated by substance abuse. Such an assessment is properly within its jurisdiction, and I see no basis on which this court can properly interfere with it.
The Need to Protect the Public from Dangerous Persons/ Significant Threat to the Safety of the Public
[21] It will be convenient to deal together with "the need to protect the public from dangerous persons" (the phrase appearing in the introductory words of s. 672.54) and with "a significant threat to the safety of the public" (the phrase appearing in s. 672.54(a)).
[22] The Board is obliged to gather and review all available evidence pertaining to the factors set out in the introductory words of s. 672.54: the need to protect the public from dangerous persons; the mental condition of the accused; the reintegration of the accused into society; and the other needs of the accused: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, 135 C.C.C. (3d) 129 at pp. 663-64 S.C.R., p. 160 C.C.C. The Board is required in each case to answer the question: does the evidence disclose that the accused is a "significant threat to the safety of the public"?: Winko, at pp. 667-68 S.C.R., p. 164 C.C.C. If the Board cannot or does not conclude that the accused poses a significant threat to public safety, it must order an absolute discharge: Winko, at pp. 664-65 S.C.R., p. 161 C.C.C.
[23] On the evidence that was before the Board in this case, KPH has, since 1994, not considered the appellant to be a significant risk to public safety. Its report in that year recommended an absolute discharge, and opined that this would be consistent with the appellant's needs and would not be contrary to the best interest of the public.
[24] The 1997 KPH report, following a positive urine sample for drugs, stated:
Mr. Owen has, once again, demonstrated that he is unlikely to refrain from petty criminal behaviour, or legal behaviour yet prohibited to him, over the longer-term. He has acknowledged this to the Board in previous hearings and history would appear to confirm it. However, in the hospital's opinion, Mr. Owen has, otherwise, managed reasonably well in the face of major medical, social, financial and domestic difficulties. Throughout these past several years, there has been no evidence of criminal behaviour which has resulted in the victimization of anyone. Indeed, Mr. Owen, with his c/l wife (herself suffering from a major mental illness), has made a reasonable job of raising a small son and living peacefully in the community with extremely limited resources.
[25] The risk assessment attached to the 1997 report stated:
Mr. Owen requires close hospital supervision in order to remain an assumable risk in the community. Alcohol and drug consumption are a certainty in the absence of close controls and remain likely, over the longer term, even with them. The hospital's role is to discourage non-compliance with abstinence orders and minimize escalation in risk when it occurs.
[26] The 1999 KPH report supported the appellant's relocation to the Chatham area. The attached risk assessment stated:
Mr. Owen has made considerable gains in the past year in terms of working with the team, rather than against. Although he remains uninvolved in all treatment programs and activities offered, he has been compliant with supervisory requirements and despite major stressors, has not relapsed into substance abuse. The team is of the opinion that with reasonable support and supervisory arrangements in place, the risk to the safety of the public can be safely managed if Mr. Owen were to relocate to the Chatham community.
[27] But for the appellant's arrest and subsequent conviction for impaired driving in 1999, he would have relocated to the Chatham area as suggested in this report.
[28] To engage s. 672.54, the threat must be "significant" both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of grave harm will not suffice, nor will a high risk of trivial harm; and the conduct or activity creating the harm must be criminal in nature: Winko, at p. 665 S.C.R., p. 161 C.C.C.
[29] The evidence before the Board fell short of establishing that the appellant is a significant threat to the safety of the public, even when using drugs. The factor that appeared principally to underlie the Board's latest disposition was the appellant's "admission . . . that he had secretly used drugs and alcohol for many years, taking steps to deceive the hospital on many occasions. This factor tainted all of the appellant's apparent progress over the years." Thus, the Board declared, the appellant was by his conduct the agent of his own misfortune. In so reasoning, the Board shifted the focus from the protection of the public to the prevention of the appellant's abuse of alcohol and illegal drugs. It exercised its power to make a disposition for a punitive purpose, rather than following the admonition of McLachlin J. in Winko, at p. 657 S.C.R., p. 156 C.C.C., that
. . . Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case.
[30] Notwithstanding the deference to which the decision of the Board is entitled, I am of the view that the evidence before it did not support the conclusion that the appellant is a dangerous person from whom the public requires protection or that he is a significant risk to the safety of the public.
The Least Onerous and Least Restrictive Disposition
[31] Upon considering the factors listed in s. 672.54, the Board is required to make the disposition that is the least onerous and restrictive to the accused. In the words of McLachlin J., "[j]ustice requires that the NCR accused be accorded as much liberty as is compatible with public safety": Winko, at p. 640 S.C.R., p. 143 C.C.C.
[32] The disposition in 1997 that followed that year's positive result of the test of the appellant's urine sample ordered that he be detained at KPH but live in the community with passes for up to six days to travel in Ontario subject only to indirect supervision. By contrast, the disposition in 2000 that followed a positive test result in that year was considerably more restrictive, ordering detention at KPH and permitting only supervised access to the community. With the single exception of the disposition that followed the appellant's conviction for assault in 1990, the disposition made in 2000 that is the subject of this appeal is the most onerous and restrictive disposition ordered against the appellant since 1982. In my view, it cannot pass the litmus test mandated by Winko.
[33] In Winko, McLachlin J. observed, at pp. 652-53 S.C.R., p. 152 C.C.C.:
The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.
[34] She described the approach that must be taken by a court or review board in these terms, at p. 664 S.C.R., p. 161 C.C.C.:
If the court or Review Board, after reviewing all the relevant material, cannot or does not conclude that the NCR accused poses a significant threat to public safety, it must order an absolute discharge. If it concludes that the NCR accused does represent such a threat, then it must order the least restrictive of the two remaining alternatives of conditional discharge or detention consistent with its analysis of the four mandated factors.
[35] The Board's reasons for disposition in the present case quoted extensively from the report of the KPH administrator. The administrator's risk assessment, which was one of the passages quoted, set out that the appellant had demonstrated that "even with close controls he engages in behaviours that could potentially place members of the public at risk" and that "[i]n the absence of direct supervision at all times, the team is not confident in its ability to prevent Mr. Owen from engaging in high risk behaviour which may significantly increase the likelihood of recidivism"
(emphasis added).
[36] In Winko, McLachlin J. said, at p. 665 S.C.R., p. 161 C.C.C.:
[T]he threat posed must be more than speculative in nature; it must be supported by evidence.
The threat posed in the KPH administrator's risk assessment is entirely speculative in nature. It lacks evidentiary support.
[37] On the evidence before it, the Board could not properly conclude that the appellant posed a significant threat to public safety and was therefore obliged to order his absolute discharge.
Disposition
[38] I would allow the appeal, set aside the order of the Board, and direct that the appellant be discharged absolutely.
Appeal allowed.
Notes
[^1]: This language is quoted directly from the Penetanguishene Mental Centre case. It should be noted, however, that the wording of s. 672.78(1)(a) is "it is unreasonable or cannot be supported by the evidence".